Wills and probate - Things to know. 

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WILLS - How to do a will and probate

• The need for a will can be avoided by owning property jointly with another person. That other person automatically become the sole owner on the production of a death certificate and the filling in of a form. There are two options for property, one is jointly and the other is tenants in common equal shares. Tenants in common require probate. Jointly owned bank accounts do not require probate.
• Courts will change wills where it thinks the Testator (person making the will) has been unfair to one or more of his children. The way around this is to state in the will that the child had support, had stolen or was given her fair share when he/she was alive. This can be supported with a sworn affidavit or Statutory Declaration.
• The signing of the will must be witnessed by two witnesses at the same time - the same pen must be used as the use of a different pen by the different witnessing people can bring this into doubt.
• Any staple or pin holes or markings on the will raises suspicions and the will may not be accepted by the Probate Office. So be very careful not to use staples and staple the will to other documents. There may have been an amendment (codicil) to the will that was removed.
• Executors and beneficiaries should not witness the will as doing so can bring their benefits into some doubt. If the will is disputed beneficiaries can cease to be beneficiaries as the will can be seen as being self serving to them.
• In our system of law only legal entities (Individuals over 18 and companies) can own property. When a person dies they cease to be a legal entity and are replaced by the executor. The executor becomes the legal owner of a deceased person's assets. 
• When a person dies a will effectively creates a "Trust" where the Executor becomes trustee and has to act in the interests of the beneficiaries of the will. 
• Trusts created by wills can not have infinite life, they must have a terminating condition such as till someone dies or after ten years. The clause "I EMPOWER my Trustees for the time being of this will to sell my real and personal estate or any part thereof at such time or times as such Trustees shall think fit" has the effect of terminating the Trust of a will at such time or times as such Trustees shall think fit.
• Wills that create a trust situation which lasts a life time or many years create lots of heart ache for beneficiaries and opportunities for the Executor to cheat and also make the will complicated to administer with lots of additional legal costs. 
• When an executor dies his executor become the executor (Wills Act). 

Probate:

• Probate means to prove the will to the court. 
• The Probate Court accepts a set of forms and considers these forms before granting probate.
• The Probate form is an authority granted by the court to the ownership of the assets of the deceased person.

Probate for the will of Harry Croll required  the following forms:-

• Advertisement in a newspaper.
• An affidavit of advertisement with a copy of the add that was in the Newspaper.
• The original will
•  Affidavit of executor
• Affidavit of Arthur Newman
• Affidavit of Publication of Notices and Searches
• Inventory of Assets
• Order of the Registrar for the Grant of Probate
• Originating Motion for Grant of Probate
• Probate of the Will of Henry Theodore Croll

When these sworn documents were presented to the Probate Court Probate was granted. Trevor Croll had some uncertainties and purchased a probate kit from Legal Kits Victoria.